In a landmark opinion on Monday, the United States Supreme Court held sexual orientation and gender identity discrimination are prohibited under Title VII of the Civil Human Rights Act.
To arrive at its 6-3 decision, the Court consolidated three cases:
Bostock v. Clayton County, Georgia: a child welfare services coordinator was fired for “unbecoming conduct” after the County learned of his participation in a gay softball league. The Eleventh Circuit held that sexual orientation is not protected under Title VII and so dismissed his suit.
Altitude Express, Inc. v. Zarda: a New York skydiving instructor was fired after his employer received a complaint that, during a jump, he informed a customer that he was gay. The Second Circuit held sexual orientation is protected under Title VII and allowed the case to proceed.
R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC: a funeral director was fired after informing her employer that she was transgender and planned to transition her appearance. Reaching a similar result as in the Zarda case, the Sixth Circuit held gender identity is covered under Title VII.
All three of these cases relied on Title VII’s prohibition against discrimination “on the basis of … sex” and resulted in conflicting outcomes regarding the scope of Title VII’s protections among their circuit courts.
By way of background, Title VII of the Civil Rights Act of 1964 is federal law that prohibits discrimination in the workplace based on an employee’s race, color, religion, sex, or national origin. Until now, there has been significant debate regarding whether Title VII’s prohibition against discrimination on the basis of “sex” applies to sexual orientation and gender identity. While sex traditionally refers to whether a person is characterized as male or female, sexual orientation generally concerns a person’s physical attraction to others and gender identity refers to a one’s personal concept of how they perceive themselves. While acknowledging that sex can be distinguished from sexual orientation and gender identity, the Court held the three concepts are inseparable for Title VII purposes: “It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
Writing for the majority, Justice Gorsuch offered two examples demonstrating the Court’s reasoning that discrimination based on an employee’s LGBTQ characteristic is necessarily because of sex:
First, consider two employees who are both attracted to men and are materially alike in all respects except that one is male and the other female. If the employer fires the male employee for no reason other than his attraction to men, the termination is implicitly based on or because his sex – in other words, but for the employee’s male sex, he would not have been terminated for his attraction to men.
Second, consider two employees who identify as female and are materially alike in all respects except that one was identified at birth as male. If the employer fires the transgender employee based on her sexual identity, it “intentionally penalizes” the transgender employee “for traits or actions that it tolerates in an employee identified as female at birth.” Here, as in the first example, the employee’s sex is the but-for cause of her termination.
While the Court’s decision resolves conflicting caselaw spanning decades and the opinion – with its two dissents – is almost 120 pages long, the Court’s holding is rather simple: “An employer who fires an individual merely for being gay or transgender defies the law.”
Importantly, Justice Gorsuch limited the Court’s decision to employment discrimination claims involving sexual orientation and gender identity under Title VII, noting “[w]hether other policies and practices might or might not qualify as unlawful discrimination or find justifications under other provisions of Title VII are questions for future cases, not these.” Justice Gorsuch also clarified that no religious liberty claim –under the Religious Freedom Restoration Act or otherwise – was before the Supreme Court in this decision, and therefore “other employers in other cases may raise free exercise arguments” in the future.
The majority’s opinion drew two dissents, both of which would have held Title VII does not prohibit employment discrimination based on sexual orientation or gender identity. Justice Samuel Alito, joined by Justice Clarence Thomas, wrote the lead dissent in which he focused on the ordinary meaning of Title VII’s words in 1964 and accused the majority of sailing under a “textualist flag” while actually updating old statutes to better reflect current societal values. Justice Brett Kavanaugh penned a second dissent in which he accused the court of taking a “literalist” rather than “textualist” approach by parsing and considering Title VII’s words individually instead of analyzing the entire phrase.
What does this mean for employers?
The Supreme Court’s decision does not change any existing Title VII prohibitions against employment discrimination, but it does extend those prohibitions to include discrimination based on an employee’s sexual orientation or gender identity. Accordingly, employers should review their equal employment opportunity and harassment policies to clearly prohibit discrimination based on sexual orientation or gender identity. Make sure to update these policies to reflect compliance with this ruling not just in your handbook but also in your job applications, on your website, and anywhere else you maintain these policies.
Also take time to train your supervisors and managers and update your equal employment opportunity and harassment training for all employees to ensure your entire workforce is aware of this change in the law.
Finally, although many employers have already refrained from considering its employees’ sexual orientation or gender identity in its past employment decisions, please be mindful that all employers must disregard an employee’s sexual orientation or gender identity when making employment decisions going forward.
If you have questions or concerns about Employment issues, please contact our Employment Attorneys:
Joshua D. Wilson